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Let Lehman file for bankruptcy

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Lehman Brothers Holdings Inc. (NYSE: LEH) is likely to file for bankruptcy today. The reason is that the Treasury and White House are smarting from criticism of their $29 billion bailout of Bear Stearns and the $200 billion to $800 billion Fannie and Freddie nationalization. Neither of these moves has stopped the serial sell off in the shares of investment banks and other firms saddled with crumbling real estate assets. So now the powers that be have decided that they'll tighten up their moral standards and refuse to bailout Lehman.

As I posted, the basic problem is that Wall Street thinks the Treasury will cave in and put money into the Lehman bailout. But despite reports of a proposal to hive off the good part of Lehman from the bad part -- financed by other Wall Street banks -- such a resolution does not appear likely. That's because Wall Street does not want to risk its slim capital shoring up Lehman's bad part -- $85 billion worth of commercial real estate and mortgage-backed securities (MBS). These banks rightly fear that they would lose their investments and sink the entire industry in the bargain. In addition, these bad bank financiers don't want to provide the backstop to enable the winner of the bidding on the good bank to surpass them by picking up Lehman's assets cheaply.

Assuming that plan does not work and that the government refuses to step in to finance the bad bank, this leaves two basic options: Lehman files for bankruptcy or other banks liquidate Lehman in an orderly fashion. Bankruptcy might be a relatively orderly process. According to FOXbusiness, "if Lehman entered into bankruptcy protection, the brokerage units would enter Chapter 7 liquidation and a court-appointed trustee would liquidate the firm's assets and give customers back their money. Generally, securities a customer holds at a brokerage firm are legally the investor's property, and aren't exposed to the claims of the firm's creditors." A bankruptcy would likely wipe out Lehman common shareholders.

The option of an orderly liquidation appears to be an oxymoron. That's because Lehman and other Wall Streeters participate in a $62 trillion Credit Default Swap (CDS) industry (it's over four times bigger than US Gross Domestic Product). When a CDS settles, due to the bankruptcy of bond issuers or another event of default, CDS buyers purchase the company's bonds, which they need to settle their CDS contracts.

According to FOXbusiness, an orderly liquidation of Lehman would require the rest of Wall Street to pick through Lehman's CDS portfolio and decide whether other firms could step in for Lehman in many of these deals. I have not seen any estimates regarding how much this would cost the other banks. But it seems to me that unless the documentation for all these CDSs is extremely clear and thorough, it could be quite a lengthy process to sort through the complexity. I doubt it can all be cleared up before Asian markets open on Sunday night New York time.

The $1.4 trillion worth of CDS contracts on Fannie Mae (NYSE: FNM) and Freddie Mac (NYSE: FRE) books are still being sorted out because last Sunday's government takeover triggered their unwinding. Adding the Lehman contracts to this unwinding process could stress out a CDS settlement system that has never been tested to this extent. "In a cash settlement, CDS sellers pay borrowers the difference between a defaulted bond's market value and par," writes FinancialWeek.

It reports that following their nationalization, the good news is that Fannie and Freddie bonds now trade near par so the settlement of those CDS contracts may not be catastrophic. But this may not be the case with Lehman and its CDS contracts. Moreover, ratings agencies are likely to downgrade the debt ratings of Lehman if its situation is not resolved soon. This would throw more gasoline onto the financial fire.

My prediction is that Lehman will file for bankruptcy later today since it appears to be the least bad of the available options. The others do not appear likely to come to fruition by tonight. It remains to be seen whether global markets will react calmly to this news or will meltdown as Paulson predicted they would have if he had not bailed out Bear Stearns, Fannie and Freddie.

If the government decides not to make a decision tonight, then the other options could remain in play. But that uncertainty might produce even more havoc.

Update1. Bloomberg News reports that the capital constrained UK bank, Barclays, may bid for Lehman. It also provides a useful estimate of how much more a buyer might need to write-down Lehman's "bad bank" assets -- $21 billion which it estimated by reducing Lehman's mortgage-related assets valuations "further to between 5 cents on the dollar for collateralized debt obligations and 35 cents for European mortgages," according to Bloomberg.

Update 2. Telegraph.co.uk reports that Barclays, which this morning appeared to be the best hope for a Lehman Brothers acquirer, has declined to bid. The reason? "the US government's unwillingness to guarantee Lehman's assets," according to Telegraph. This makes a bankruptcy filing more likely -- but it also puts pressure on the US to cave in to demands to backstop those dodgy Lehman assets to facilitate a deal.

Peter Cohan is President of Peter S. Cohan & Associates. He also teaches management at Babson College and edits The Cohan Letter. He has no financial interest in the securities mentioned.

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Last updated: November 08, 2009: 05:15 PM

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